NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1952
_____________
HILLARY A. KACIAN,
Appellant
v.
POSTMASTER GENERAL OF THE UNITED STATES
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. 03-12-cv-00102)
District Judge: Honorable Kim R. Gibson
______________
Argued: January 21, 2016
____________________________
Before: JORDAN, HARDIMAN, and GREENAWAY, JR., Circuit Judges
(Opinion Filed: June 27, 2016)
Adam R. Gorzelsky, Esq. [ARGUED]
101 North Main Street
Suite 1-6
Greensburg, PA 15601
Attorney for Appellant
Rebecca R. Haywood, Esq.
Laura Schleich Irwrin, Esq. [ARGUED]
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Morgan Rehrig, Esq.
United States Postal Service
Room 6403
475 L'Enfant Plaza, S.W.
Washington, DC 20260
Attorneys for Appellee
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OPINION*
_____________
GREENAWAY, JR., Circuit Judge:
Appellant Hillary A. Kacian appeals the District Court’s grant of summary
judgment to the Postmaster General of the United States of America, her former
employer, on her claim for retaliation pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Kacian alleges she was fired in retaliation for
complaining to her supervisors about sexual harassment. We disagree with the District
Court’s conclusion that Kacian did not put forth sufficient evidence to demonstrate a
causal connection between her protected activity and termination. Therefore, we will
vacate the order of summary judgment and remand to the District Court.
I. Background
Kacian began working for the Johnstown Post Office in March 2008 as a letter
carrier. The sexual harassment she complains of began in 2010. In April of 2010,
Kacian brought photographs from a vacation to work. Kacian claims that her supervisor,
George LaRue, obtained the photographs and asked her if he could have a copy of a
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photograph in which Kacian was wearing a bikini. She said no. LaRue asked Kacian for
the photograph on a different occasion, and she again refused. Kacian claims that after
these refusals, LaRue began assigning her more work than she could handle. She further
claims that LaRue gave her inadequate direction in completing this work and refused to
give her assistance when she requested it.
Around this time, in the summer of 2010, Kacian claims that LaRue also began
making unwelcome comments to her about her physical appearance and private life,
sometimes in the presence of other employees. On one occasion, in reference to a cold
sore, LaRue told her “Oh, looks like you got something on your lip. You might want to
get that checked out[,]” a comment that Kacian believed connoted herpes. J.A. vol. II at
49. On another occasion, Kacian was involved in a slip and fall accident, which caused
her pain in her knees. In response to Kacian’s injury, LaRue told her to “stay off [her]
knees,” which Kacian also believed connoted sexual activity. J.A. vol. II at 51. Kacian
also claims that LaRue had a female supervisor tell her that her uniform shorts were too
short, even though her shorts were regulation length. Finally, Kacian claims that in the
spring of 2011, LaRue made disparaging comments to her about her weight, telling her at
one point “you’re getting a little hefty there. Maybe you should do something about it.”
J.A. vol. II at 55.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
3
On July 14, 2011, Kacian complained to Union President Joseph Sarosi and
supervisor Jeff Hauser about this harassment. Kacian claims that she told Hauser and
Sarosi: “I’m tired of all this sexual harassment, given too much work that we can’t do,
being treated like dogs. . . . [T]he supervisors saying inappropriate things, the sexual
harassment.” J.A. vol. II at 66–68. In his deposition, Sarosi stated that Kacian
complained about LaRue specifically; Kacian recalled that Sarosi told Hauser that they
would be meeting with the Postmaster shortly thereafter to discuss her claims of sexual
harassment. Hauser stated that he had no recollection of the conversation.
On July 19, 2011, LaRue and supervisor Cheryl Cernetich observed Kacian while
she was on a delivery route. While driving, Kacian crossed an intersection with her
vehicle door open. After this observation, LaRue held a pre-disciplinary interview with
Kacian in which she admitted to driving across an intersection with her vehicle door
open. Within hours, LaRue filed a disciplinary action against Kacian and recommended
her termination to Postmaster Michael Olsavsky. Kacian’s driving infraction was the
sole basis of LaRue’s recommendation. Kacian received notice of her termination on
July 21, 2011.
As a transitional employee (“TE”), Kacian was not entitled to progressive
discipline, or warnings, and could be fired for just cause. On the other hand, permanent
employees, or “career employees,” were entitled to progressive discipline before
termination. Thus, because Kacian was ineligible for progressive discipline, she could be
terminated based on the safety infraction alone.
4
However, according to Sarosi, “most times” when a safety infraction occurred,
“[supervisors] just sweep it under the rug, and let it go.” J.A. vol. II. at 163. Sarosi
recalled incidents in which TEs and career employees were observed committing a
variety of safety infractions and were not disciplined. These included TEs observed with
the vehicle door open and not wearing a seatbelt, career employees observed driving with
the vehicle door open and their feet hanging out of the door, and a TE that drove a
vehicle into a cement wall. Further, Sarosi stated that during his time as Union President
(a position he has held since 2009), only two TEs were terminated. The two TEs were
Kacian and her boyfriend Randy Hamonko.
LaRue’s deposition testimony echoed some of Sarosi’s account. LaRue stated that
during his time as a supervisor (a position he has held since 2007), he had only
recommended the termination of three employees. One was Kacian in 2011. The other
two were career employees—one was terminated for falsifying scans in January 2012,
and the other was terminated when he “called off instead of coming to work [and] went to
a football game” in December 2012. J.A. vol. II at 139. LaRue also stated that he had
observed at least one other career employee driving with the vehicle door open against
whom he did not take any formal disciplinary measures.
Kacian filed an Equal Employment Opportunity (“EEO”) complaint on July 22,
2011, alleging sexual harassment. On August 24, 2011, Kacian and the Post Office
entered into a settlement agreement. Under the agreement, Kacian agreed to withdraw
her EEO complaint. In return, Postmaster Olsavsky was required to “talk with each
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supervisor/employee he manages about how to appropriately interact with and talk to
employees he/she supervises on the work floor.” S.A. 138. Months after the agreement
was formed, however, Kacian claimed that the Post Office breached the settlement
agreement and appealed. On appeal, the Equal Employment Opportunity Commission
found that the agreement was “void for lack of consideration,” and issued Kacian a notice
of her right to file a civil action.
Kacian filed suit asserting claims for retaliation, and upon the Post Office’s
motion, the District Court granted summary judgment. The District Court held that
Kacian could not make a prima facie case of retaliation because she could not establish
that LaRue knew about her sexual harassment complaint. It explained that “Kacian has
cited no evidence, other than mere speculation based on [Sarosi’s] testimony, that
supports a finding that [LaRue] had knowledge of her harassment claim.” J.A. vol. I at
19–20. The District Court also held that Kacian could not establish that her sexual
harassment complaint was founded on an objectively reasonable belief of discrimination.
The Court reasoned that the incidents complained of were not “so severe and pervasive as
to alter the conditions of Kacian’s employment.” J.A. vol. I at 22.
II. Standard of Review1
We exercise plenary review of the District Court’s order for summary judgment.
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 251 (3d Cir. 2014). “In conducting
1
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction under 28 U.S.C. § 1291.
6
our review, we view the record in the light most favorable to the party opposing the
motion and draw all reasonable inferences in [her] favor.” Baldassare v. State of N.J.,
250 F.3d 188, 192 n.1 (3d Cir. 2001). Further, in our review we do “not weigh the
evidence, determine the credibility of witnesses, or substitute [our] version of the facts
for the jury’s version.” Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d
Cir. 1992), cert. denied, 507 U.S. 921 (1993).
III. Analysis
In order to make a prima facie case of retaliation, the plaintiff must show: (1) that
she engaged in a protected activity, which can include informal protests of discriminatory
employment practices such as making complaints to management; (2) adverse action
taken by the employer either after or contemporaneous with the employee’s protected
activity; and (3) a causal connection between the protected activity and the adverse
action. Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015).
We conclude that Kacian’s complaint was protected activity, because her belief
that she was sexually harassed was objectively reasonable. In order to bring a retaliation
claim, “the employee must have an objectively reasonable belief that the activity s/he
opposes constitutes unlawful discrimination under Title VII.” Wilkerson v. New Media
Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008) (internal quotations omitted).
Only if “no reasonable person could have believed that the underlying incident
complained about constituted unlawful discrimination” is a complaint unprotected. Id.
Importantly, “a victim of retaliation need not prove the merits of the underlying
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discrimination complaint in order to seek redress.” Moore v. City of Phila., 461 F.3d
331, 344 (3d Cir. 2006) (internal quotations omitted).
Kacian’s complaint meets this standard. The conduct Kacian complained of
involved supervisor LaRue asking her for a photograph of her in a bikini on more than
one occasion, making several unwelcome comments about her physical appearance and
private life, and refusing to give her assistance in completing unfamiliar tasks. The
incidents Kacian complains of were not as alleged isolated, nor was it ambiguous that she
was the intended target. Kacian reasonably, and in good faith, could have believed that
such harassment constituted unlawful discrimination, and a factfinder could conclude that
her complaint to Sarosi and Hauser was protected conduct under Title VII.
We also conclude that there is sufficient evidence to raise an inference of a causal
connection between Kacian’s complaint and her termination.2 Temporal proximity alone
can demonstrate a causal link when the adverse action and protected activity are very
close in time. See Marra v. Phila. Housing Auth., 497 F.3d 286, 302 (3d Cir. 2007) (“In
certain narrow circumstances, an ‘unusually suggestive’ proximity in time between the
protected activity and the adverse action may be sufficient, on its own, to establish the
requisite causal connection.” (internal citations omitted)). A time period of two days is
“unusually suggestive” of retaliatory motive, while a period of nineteen months is likely
2
The Post Office does not dispute that, by terminating Kacian’s employment, it
took adverse action against her.
8
not. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (quoting
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).
No more than five days after Kacian engaged in protected activity, LaRue
recommended that she be fired. Two days later, she was terminated. The especially short
time period we are presented with here reflects the “narrow circumstances” in which
Marra applies. And even if we were not within those narrow circumstances, we conclude
that the evidence “looked at as a whole” further raises an inference of a causal link.
Kachmar v. SunGard Data Sys. Inc., 109 F.3d 173, 177 (3d Cir. 1997); see also Marra,
497 F.3d at 302 (“[a] plaintiff may rely on a ‘broad array of evidence’ to demonstrate a
causal link” (quoting Farrell, 206 F.3d at 284)). Differential treatment of the plaintiff
and similarly situated employees can support the inference. See, e.g., Marra, 497 F.3d at
302; EEOC v. L.B. Foster Co., 123 F.3d 746, 754–55 (3d Cir. 1997). As can ongoing
antagonism or retaliatory acts. Farrell, 206 F.3d at 280. Here, the totality of the
evidence supports an inference of causation.
To start, Kacian presents evidence of differential treatment as the testimony of
both LaRue and Sarosi suggests that Post Office employees were not typically terminated
for safety infractions, and that supervisors enjoyed broad discretion in determining which
infractions became actionable offenses. According to LaRue, before recommending
Kacian’s termination, he had not recommended the termination of any employee in his
approximately six years as a supervisor. LaRue also stated that he had observed at least
one employee committing the same or similar infraction and had taken no punitive
9
measures. Sarosi stated that “most times” supervisors “sweep [safety infractions] under
the rug,” and recalled specific instances in which employees, both TEs and career
employees, were observed committing infractions comparable to Kacian’s and were not
disciplined.
Kacian also presents evidence of a pattern of antagonism following her complaint.
Sarosi stated that Hamonko, who was known to be Kacian’s boyfriend, was also
terminated by the Post Office after Kacian’s termination. Hamonko was reinstated after a
successful grievance, but eventually quit because supervisors were “on him every day.”
The record further reflects that since 2009, Kacian and Hamonko were the only TEs
terminated due to safety infractions. J.A. vol. II at 185. Viewed in the light most
favorable to Kacian, this evidence can suggest retaliatory animus, and can thus raise an
inference of a causal link.3
The Post Office argues that there can be no inference of a causal connection
because LaRue and Olsavsky testified that they lacked knowledge of the complaint, and
Kacian presents no direct evidence indicating otherwise. While we have refused to find
3
While this does not definitively prove that Hamonko’s treatment was because of
Kacian’s interactions with the Post Office, the burden at this stage is not so high as to
require plaintiffs to conclusively prove that any pattern of antagonism was because of
their protected activity. See Marra, 497 F.3d at 302 (plaintiff could demonstrate ongoing
antagonism in part because employer gave plaintiff a “look of disgust” when he learned
about his protected activity). Further, the fact that Sarosi testified that it was Hauser, and
not LaRue, who investigated Hamonko’s infraction is not fatal to Kacian’s position. This
is both because Sarosi testified that the managers generally were “on [Hamonko] every
day,” which can also show ongoing antagonism from the supervisors as a group, and
10
an inference of a causal connection where the plaintiff relies only on her own
uncorroborated beliefs to demonstrate knowledge, see Daniels, 776 F.3d at 196–97, or
where there is no record evidence establishing knowledge, see Moore, 461 F.3d at 351,
our case law allows a plaintiff to establish knowledge through circumstantial evidence.
See Azarro v. Cty. of Allegheny, 110 F.3d 968, 973–74 (3d Cir. 1997) (en banc)
(concluding that, even though there was “no evidence” that those who took adverse
action had knowledge of plaintiff’s complaint, summary judgment was inappropriate
because there was circumstantial evidence raising an inference of knowledge). Olsavsky
stated that his decision rested entirely on LaRue’s recommendation. Thus, it is only
necessary to determine whether LaRue had knowledge of Kacian’s complaint. See
McKenna v. City of Phila., 649 F.3d 171, 176 (3d Cir. 2011).
Kacian proffers sufficient evidence to raise an inference that LaRue had
knowledge of her complaint. Although temporal proximity alone cannot “establish that
the adverse actor had knowledge of the protected conduct before acting,” we have not
held that temporal proximity is irrelevant to a finding of knowledge. Daniels, 776 F.3d at
197. Further, our precedents indicate that knowledge, like any other mental state, can be
proven with circumstantial evidence. Id. at 197–98. That is, a rational juror could find
the seven days between Kacian’s complaint and termination, especially in the context of
because our case law does not require a plaintiff to show that such antagonism came from
the person who took the adverse action.
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LaRue’s history of lenience, a relevant factor—even if not a dispositive factor—in
determining LaRue’s knowledge.
Moreover, the record contains evidence that further raises an inference of
knowledge above and beyond that which can be used to show causation. We begin by
noting that the Johnstown Post Office does not have a large managerial staff. At the time
of the events at issue, the Post Office employed only four supervisors. J.A. vol II at 109.
In his deposition, Sarosi stated that he believed that LaRue, one of these four supervisors,
learned about Kacian’s complaint through Hauser. Thus, Kacian’s assertion as to
knowledge does not rely solely on her uncorroborated belief; rather, it is supported by an
individual with unique access to the events at issue. Finally, a factfinder could
reasonably infer that LaRue knew about the complaint as, according to Sarosi’s
testimony, it involved specific allegations against him. See Daniels, 776 F.3d at 197
(noting that “a factfinder potentially could infer” that defendants knew about plaintiff’s
protected activity because plaintiff’s complaint “contained specific allegations against
them”). This evidence, especially given the small size of Johnstown’s managerial staff,
could allow a juror to infer LaRue’s knowledge.
IV. Conclusion
For the foregoing reasons, we will vacate and remand the judgment of the District
Court.
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